Laura Johns v. Kentucky Parole Board

• Court: Court of Appeals of Kentucky
• Decided: March 17, 2022
• Docket: 2020 CA 001151
• Status: Unknown

Opinion

RENDERED: MARCH 18, 2022; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-1151-MR

LAURA JOHNS; CHRISTINE STRAZZABOSCO; DUSTIN RUSSELL; TIMOTHY SHANE; AND ZACHARY SCHOOLAR APPELLANTS

APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 20-CI-00381

KENTUCKY PAROLE BOARD AND KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.

ACREE, JUDGE: Appellants appeal the Franklin Circuit Court order denying

both their petition for immediate release from state custody and reinstatement to supervised parole and their motion for class certification pursuant to CR1 23. After

reviewing the record, we affirm the circuit court’s order.

BACKGROUND

Each Appellant was convicted of a crime but subsequently paroled

under supervision and subject to certain conditions. Each was charged later with

violating the terms of supervised parole, each was found at a hearing to have

violated those terms, each had their parole revoked, and each was reincarcerated.

This seems routine until one considers Appellee Kentucky Parole

Board is subject to a statute governing when the revocation hearing must be

conducted. In its entirety, the applicable version of the statute says: “Any prisoner

returned to prison for violation of his release shall be heard by the board within

thirty (30) days on the propriety of his rerelease.” KRS2 439.440 (1956).3

Appellants argue the Parole Board failed to comply with the statute as to each

Appellant.4 No party disputes the COVID-19 pandemic played a role in the delays.

1 Kentucky Rules of Civil Procedure. 2 Kentucky Revised Statutes. 3 The statute was amended, effective July 15, 2020, and now reads: “Any prisoner returned to state custody for violation of his or her release shall be heard by the board within sixty (60) days on the propriety of his or her rerelease.” KRS 439.440 (emphasis added showing change). 4 Each Appellant alleges he or she remained in state custody longer than the period within which their revocation hearing was required to be conducted. The Parole Board made its parole revocation determination regarding Appellant Strazzabosco 125 days after being returned to state custody, regarding Appellant Russell in 108 days, regarding Appellant Shane in 146 days, regarding Appellant Schooler in 157 days, and regarding Appellant Johns in 114 days.

-2- Appellants and others5 filed a petition with the circuit court pursuant

to KRS 418.040 for declaratory and injunctive relief. They also moved the circuit

court pursuant to CR 23 to certify, as classes, three distinct but similarly situated

groups of parolees.

Appellants claimed the Parole Board violated KRS 439.440 by failing

to conduct timely hearings. The remedy they seek is the immediate release from

state custody and return to supervised parole status of each of the Appellants and

other petitioners and, presuming class certification, each member of each class

certified. They argue such relief should be granted notwithstanding the merits of

any claim they violated the conditions of their parole.

Appellees disputed the claims and eventually moved the circuit court

for summary judgment. They presented three arguments to the circuit court.

First, Appellees said the parolees’ cases are moot because the Parole

Board held hearings in each case.

Second, Appellees argued the petitioners, including Appellants here,

were in local or county jails and remained there. Therefore, they were not

“prisoner[s] returned to prison[.]” KRS 439.440 (emphasis added). Consequently,

the 30-day time period for conducting a revocation hearing never began.

5 In addition to Appellants, the petitioners in the circuit court action were Shaun Haley, Robby Dudley, Jeffrey Hearington, Jeremiah Kelly, Jeremy Kirksey, Curtis Wilkerson, and William Johnson.

-3- Third, Appellees argued the only remedy available for an untimely

revocation hearing is a writ of mandamus compelling the Parole Board to conduct

the hearing; their petition for any other relief should be denied.

The circuit court found for Appellants on the Appellees’ first two

claimed grounds for summary judgment, holding: (1) although the cases were

moot, they were capable of repetition, yet evading review, thereby authorizing

adjudication; and (2) there was no meaningful distinction between returning a

parolee to prison and any other form of reincarceration by the state.

However, the circuit court agreed with Appellees the only remedy

available when the Parole Board misses the deadline imposed by KRS 439.440 is a

writ of mandamus to compel the requisite hearing. Because those hearings were

already conducted, Appellants have their remedy and are entitled to no more.

ANALYSIS

We cannot yet decide whether the circuit court was correct in

determining whether Appellants were entitled to the specific remedy they sought.

Necessarily, we must first address the question of mootness, not only as

determined by the circuit court, but as a question of our own subject matter

jurisdiction. Kentucky Bd. of Nursing v. Sullivan Univ. Sys., Inc., 433 S.W.3d 341,

343 (Ky. 2014) (citing Veith v. City of Louisville, 355 S.W.2d 295, 297-98 (Ky.

1962)) (“Appellate courts lack subject matter jurisdiction to decide cases that have

-4- become moot.”).6 This Court may not proceed at all unless we determine either the

issue before us is not moot or an exception to mootness applies.

Interpretation of the phrase “return[] to prison” in KRS 439.440

(1956) has been briefed by both parties. Our review does not require deciding this

question. The circuit court ruled in Appellants’ favor and Appellees have not

challenged the ruling with a cross-appeal. Additionally, the statute has been

revised to eliminate the dispute. Therefore, we will not address it.

6 We question Kentucky Board of Nursing’s association of mootness with subject matter jurisdiction. If that case, or Appellants’ cases in this appeal, had been brought before becoming moot, no one could doubt the circuit court’s subject matter jurisdiction. We believe mootness, like other forms of non-justiciable cases, deprives a court of particular case jurisdiction, not subject matter jurisdiction, as shown in the cases Kentucky Board of Nursing cites. Analysis in Kentucky Board of Nursing is predicated on the reasoning of Veith v. City of Louisville, 355 S.W.2d 295 (Ky. 1962), which, in turn, relies upon Elrod v. Willis, 303 Ky. 724, 198 S.W.2d 967 (1946), Commonwealth ex rel. Watkins v. Winchester Water Works Company, 303 Ky. 420, 197 S.W.2d 771 (1946), and Revis v. Daugherty, 215 Ky. 823, 287 S.W. 28 (1926). Not one of these cases mentions subject matter jurisdiction. In fact, the question in Veith is not even mootness, but a different category of non-justiciable cases, ripeness. Veith, 355 S.W.2d at 297 (“[T]he possible development of a legal issue sometime in the future is too remote to constitute a real controversy.”); see Nordike v. Nordike, 231 S.W.3d 733, 738 (Ky. 2007) (citation omitted) (“Jurisdiction over a particular case . . . includes, or at least relates to, concepts such as ripeness . . . .”). Elrod contains no form of the word “moot” for good reason; it was not moot, but simply did not present a justiciable issue because “appellant has no right w[hich] is affected by the provision he has attacked in his petition.” 303 Ky. at 727, 198 S.W.2d at 969. In Watkins, the Winchester Water Works based its petition on its “fear or expectation” that the Department of Highways might “take action which would necessitate the removal or relocation of the pipe lines . . . in the future.” 303 Ky. at 422, 197 S.W.2d at 772. The Department never engaged in conduct “to turn the academic question into a justiciable one . . . .” Id. at 423, 197 S.W.2d at 773. Clearly, this case is about ripeness. Like most of these other cases, Revis never mentions the word “moot” or its forms, but simply says a “justiciable plaintiff should aver his legal rights” and also aver the defendant acted to “impair, thwart, obstruct, or defeat plaintiff in his rights. Nothing of the kind is averred as against the alleged defendant . . . .” 215 Ky. at 825-26, 287 S.W. at 29. In each case, and others, mootness and other forms of non-justiciability affect a court’s authority to adjudicate the particular case over which the court clearly has jurisdiction of its subject matter.

-5- Mootness Question

“[M]ootness is a threshold matter for a reviewing court to resolve.”

Kentucky Bd. of Nursing, 433 S.W.3d at 343 (citing Kentucky High Sch. Athletic

Ass’n v. Edwards, 256 S.W.3d 1, 4 (Ky. 2008)). “[A]n appellate court is required

to dismiss an appeal when a change in circumstance renders that court unable to

grant meaningful relief to either party.” Med. Vision Grp., P.S.C. v. Philpot, 261

S.W.3d 485, 491 (Ky. 2008); see Kentucky Bd. of Nursing, 433 S.W.3d at 344.

Appellants are reincarcerated parolees who violated conditions of

their parole. The meaningful relief they seek is release from incarceration and

return to supervised parole, disregarding whether they violated their parole

conditions. If the circuit court was authorized to provide such relief, the issue

Appellants ask this Court to review is not moot because, on this record, the

Appellants remain imprisoned. Our review could continue.

Because mootness would deprive this Court of authority to do

anything but dismiss the appeal, we must presume, without yet deciding the

correctness of the circuit court’s ruling, that the Appellants were only entitled to a

hearing, which already occurred – making the issue moot. Commonwealth v.

Hughes, 873 S.W.2d 828, 830 (Ky. 1994) (ordering what has already occurred is

meaningless and, therefore, moot because there is no grievance to resolve). If

moot, we cannot proceed unless an exception to the mootness doctrine applies.

-6- The circuit court found the “capable of repetition, yet evading review”

exception applies. We disagree.

“Capable of repetition, yet evading review” exception does not apply.

The circuit court ruled the Appellants’ claims, though moot, could be

adjudicated because the issues involved in the case are capable of repetition, and

yet they evade review. This exception does not apply.

“The exception for cases ‘capable of repetition, yet evading review,’

has two elements: (1) the challenged action must be too short in duration to be

fully litigated prior to its cessation or expiration, and (2) there must be a reasonable

expectation that the same complaining party will be subjected to the same action

again.” Morgan v. Getter, 441 S.W.3d 94, 100 (Ky. 2014) (citation omitted). The

second element of this exception is not present here.

For purposes of our analysis, we presume the first element is satisfied

because there is a short duration for the Parole Board to conduct a revocation

hearing compared to the protractions of litigation to compel it.7 The second

element is more problematic.

Because each Appellant remains in state custody and under

supervision of the Parole Board, he or she might again be paroled, be subsequently

7 Of course, the remedy of a writ of mandamus eliminates the relevance of this element and therefore the mootness itself.

-7- accused of violating parole, and thereby be entitled to another KRS 439.440

hearing that the Parole Board might be tardy in providing. These circumstances

are not beyond possibility. But possibility is not enough.

Under the second element, “there must be a reasonable expectation

that the same complaining party will be subjected to the same action again.”

Morgan, 441 S.W.3d at 100 (emphasis added). This Court concludes any such

expectation would be unreasonable. Not only would an Appellant have to be

granted parole again, he or she would have to be accused of violating parole again.

If an Appellant’s behavior after reincarceration is such as to justify a second

parole, he or she, surely, will have learned from this first experience not to repeat

it. That makes a repeat of these circumstances unlikely to occur before the

Commonwealth is beyond the disruption of government administration visited

upon us by a pandemic.

Furthermore, the statute has been amended to give the Parole Board

twice as long to conduct the hearings. We cannot conclude there is a reasonable

expectation that any of these Appellants will be subjected again to an untimely

KRS 439.440 hearing. The second element of this exception is not satisfied.

Therefore, this exception to mootness cannot apply.

-8- “Public interest” exception to mootness applies.

We believe the public interest exception does apply. “To apply the

‘public interest’ exception to mootness the reviewing court must find three

elements present: (1) a question involving a public nature; (2) a need for an

authoritative determination for the future guidance of public officers; and (3) a

likelihood of future reoccurrence of the question.” Commonwealth v.

Collinsworth, 628 S.W.3d 82, 87 (Ky. 2021).

Whether the criminally convicted are released from incarceration is a

question of public interest, and we believe no more need be said. See, e.g., Wilfong

v. Commonwealth, 175 S.W.3d 84, 103 (Ky. App. 2004) (“[A]n appropriate

condition of probation . . . serve[s] the goals of rehabilitating the probationers and

protecting the public.”). We move on to the second element.

The Appellants’ goal in this case is to be released from incarceration.

The public officers involved, to include the members of the Parole Board and the

Department of Corrections, have a need to know whether a potential consequence

of an untimely KRS 439.440 hearing is the parolee’s release regardless of whether

he or she violated parole. That leaves only the third element.

Is the Parole Board’s failure to comply with the statutory time

restriction likely to occur again? Although a future reoccurrence of a delayed

hearing for these specific Appellants is not something we should reasonably

-9- expect, a greater likelihood exists for first-time parolees, such as Appellants once

were. A likelihood remains that even the new sixty-day limit will, from time to

time, pose a challenge for the Parole Board, even after the pandemic is no longer a

factor in the calculus. The logistics of prisoner participation in hearings, requiring

coordination and cooperation among independent offices and officers, including

possible prisoner transport, will remain an inherent obstacle to a timely hearing.

Therefore, we conclude a reoccurrence of an untimely hearing is likely, whether in

a solitary instance or occasionally.

This Court can now review the merits. If we conclude the circuit

court is correct that Appellants’ only remedy is a writ of mandamus to compel

hearings that already occurred, we will not be exceeding our jurisdiction because,

although moot, the question is reviewable pursuant to the public interest exception.

Mandamus is sole remedy for failure to conduct timely KRS 439.440 hearing.

Long ago, a parolee, reincarcerated for violating terms of his parole,

brought a habeas corpus action claiming he was “illegally restrained by the . . .

Parole Board, because his parole from the prison was revoked and he was

reincarcerated without any hearing . . . .” Shepherd v. Wingo, 471 S.W.2d 718,

719 (Ky. 1971). Rejecting habeas corpus as his remedy, the Shepherd Court cited

the now century old case of Board of Prison Commissioners v. Crumbaugh, which

says:

-10- If the [Parole B]oard should in any case abuse its authority in rearresting a convict, the remedy is by a proceeding in the circuit court . . . to obtain a writ of mandamus requiring the board to proceed properly, and in that judicial proceeding the facts may all be shown, and either party aggrieved by the decision may appeal to this court.

161 Ky. 540, 170 S.W. 1187, 1188 (1914) (emphasis added).

In a subsequent opinion a few years later, the former Court of Appeals

laid out the reasoning more clearly. “A prisoner . . . at liberty under the parole . . .

is subject to the control of the board as he was before the parole was granted.”

Commonwealth v. Crumbaugh, 176 Ky. 720, 197 S.W. 401, 402 (1917);

Muhammad v. Kentucky Parole Bd., 468 S.W.3d 331, 345 n.15 (Ky. 2015)

(parolee in revocation hearing is not seeking release from custody, “but the

exchange of one form of custody for another.”). Hence, once convicted, and until

he serves out his sentence, a parolee is lawfully in state custody whether

incarcerated or not. See KRS 439.346; KRS 439.348. Habeas is not his remedy.

Thirty or so years after the Crumbaugh cases, our highest Court

reiterated this most consistent ruling that if “the [Parole B]oard should abuse its

authority . . . , the remedy is . . . to obtain a writ of mandamus requiring the

[B]oard to proceed properly.” Mahan v. Buchanan, 310 Ky. 832, 836, 221 S.W.2d

945, 947 (1949). That is the sole remedy the circuit court identified in the instant

case.

-11- The bottom line is that each Appellant’s complaint and concomitant

remedy is indistinguishable from those in Allen v. Wingo, 472 S.W.2d 688 (Ky.

1971). In that case, the parolee claimed “revocation of parole . . . was invalid

because he had not been given a hearing as required by KRS 439.440 until 40 days

after his return to prison, whereas the statute directs that the hearing be had within

30 days . . . .” Id. at 688. Chief Justice Palmore, writing for Kentucky’s highest

Court said: “For the reasons set forth in Mahan v. Buchanan . . . and its supporting

authorities, mandamus is the only proper remedy for an abuse of authority by the

parole board . . . .” Id.

Reading Mahan and Allen together makes it clear – Appellants were

entitled to no relief other than a writ of mandamus compelling the Parole Board to

conduct the KRS 439.440 hearing. The record shows each Appellant has had the

benefit of such a hearing and they are entitled to no further relief.

Our decision makes the question of class certification moot and we

decline to address it.

CONCLUSION

For the foregoing reasons, the Franklin Circuit Court’s order is

affirmed.

ALL CONCUR.

-12- BRIEFS AND ORAL ARGUMENT BRIEF AND ORAL ARGUMENT FOR APPELLANTS: FOR APPELLEE KENTUCKY PAROLE BOARD: Timothy G. Arnold Frankfort, Kentucky Angela T. Dunham Frankfort, Kentucky

BRIEF FOR APPELLEE KENTUCKY DEPARTMENT OF CORRECTIONS:

Allison R. Brown Frankfort, Kentucky

ORAL ARGUMENT FOR APPELLEE KENTUCKY DEPARTMENT OF CORRECTIONS:

Robert Chaney

-13-